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Domingue v Andre (CA 7 of 2021)  SCSC 134 (21 February 2023);
Preliminary legal objection – No valid contract
(Sitting as a Judge of the Supreme Court)
 This judgment arises out of an appeal filed on the 16th of July 2021 in Civil Appeal 9 of 2021 by Mr. Steven Domingue (hereafter “the Appellant”), against the judgment of Magistrate Burian delivered on 2nd July 2021 wherein the plaint was dismissed with costs. The Defendant in the court a quo is cited as the Respondent namely, Yuan Andre.
 The appeal is filed on the following grounds:
Ground 1: that the learned magistrate erred in law and on the facts, for having concluded that there was no valid contract in law, between the Appellant and the Respondent, on the basis of the evidence before the trial court.
Ground 2: that the learned magistrate erred in law and on the facts in failing to assess sufficiently or at all, the evidence of the Appellant, in her considerations and determination of the issues between the parties.
Ground 3: The learned magistrate erred in law and on the facts, for having failed to address her mind that the Respondent had on records before the trial court, agreed to a settlement of the Appellant’s case, hence pointing to the Respondent’s admission to having made a valid agreement between him and the Appellant.
 The Appellant’s Memorandum of Appeal did not disclose a prayer for the relief sought.
Submissions of the parties
 By way of written submissions filed on the 16th March 2022, the Appellant submits under ground 1 (supra), that the Magistrate erred in law and on the facts that there was no valid legal agreement between the parties; that this argument is not supported on the evidence, and that the Respondent testified on oath as follows: “The arrangement had been made with my mother as the owner of the garage.” And that the mother of the Respondent testified that “Steven never discussed with me. All the discussions with Deepal.”
 The Appellant submitted further, that there are clear contradictions in the testimony of the Respondent’s case. Additionally, this must cast a doubt on the credibility of both witnesses and the Respondent’s evidence particularly. Further that there is sufficient evidence on records to show that there was an agreement between the parties, on a balance of probabilities:
- As per proceedings of the 14th December 2020 page 1 of the proceedings, the Respondent admitted in court that “Defendant: I am not disputing that SCR25, 000 was paid by Plaintiff.” The Applicant argued that this clearly shows that the Respondent had accepted that he had an agreement with the Appellant. Otherwise, why will he have admitted to having accepted SCR25, 000 from the Appellant?
- As per proceedings of the 29th April 2021 Appellant had testified in cross-examination as follows:
“No. The pickup I brought to Mr. Andre and all arrangements were made with Mr. Andre, the only time I spoke to Deepal was when we spoke of alignment. I also met Mr. Deepal when Mr. Andre asked that Deepal be brought to see the pickup before it was brought to the house. Mr. Deepal came as an employee to see the pickup to see if it was reparable. In respect of payment, the length of time of repair all these arrangements were made with Mr. Andre.”
 Further, the following aspect of the Appellant’s evidence was never fully and sufficiently considered by the Magistrate in her determination of the case. Namely, as per the proceedings of the 9th August 2020 on page 7 of the proceedings, the Respondent proposed the settlement of the claim on records through an offer of SCR58,000 plus SCR25,000 or payment of SCR25,000 and return of the pickup. This aspect of the evidence must clearly show that the Respondent acknowledges the debt and hence point to an agreement between him and the Appellant.
 With regards to ground 2 (supra), the Appellant submitted that the Appellant’s case and evidence tendered on his behalf were considered scarcely by the Magistrate in paragraph 21 of her judgment. That the Magistrate failed to analyze the Appellants’ evidence before her but rather proceeded to discard the Appellant’s case summarily. That this is in stark contrast to her consideration of the Respondent’s evidence in paragraph 19 of her judgment when she had considered both evidence of the Respondent and that of Nadine Andre.
 The Appellant further submitted that the evidence of the Appellant’s witness Joan Morel was never considered in her analysis and conclusion of the evidence before her. PW2 Joan Morel testified that she witnessed the payment of SCR25, 000 made by Appellant to Respondent. She further confirmed that the Respondent was to oversee the work. Further, as per the witness's testimony, on a balance of probabilities, this again shows that there was an agreement between the Appellant and the Respondent. The Appellant insisted that the learned Magistrate Burian failed to consider this evidence in her determination of the issues before her.
 With regards to ground 3 (supra), the Appellant stated that the court referred to the proceedings of the 9th August 2020 on page 7 of the proceedings, whereby the Respondent proposed the settlement of the claim on records through an offer of SCR58,000 plus SCR25,000 or payment of SCR25,000 and return of the pickup. Further, this aspect of the evidence must clearly show that the Respondent acknowledged the debt, hence pointing to an agreement between him and the Appellant. However, the magistrate failed to consider this.
Points in limine
 The Respondent responded to the Appellant’s submissions on 6 June 2022 in a gist as follows:
 The Respondent first raised points in limine arguing that Magistrate Burian delivered her judgment on 2 July 2021, but that the Appellant served the appeal on the parties on or around 16 September 2021, and the Memorandum of Appeal was only filed on 11 January 2022, approximately 4 months later, being 3 and a half months outside of the 14-day time limit to file same under section 11 of the Courts Act (Appeal Rules).
 Further that the Memorandum of Appeal failed to disclose a prayer for the relief sought from the Court under section 12 of the Courts Act (Appeal Rules). Based on the above, and pursuant to section 14 of the Courts Act (Appeal Rules) the appeal is deemed withdrawn, and the Court should not entertain it.
Submissions on the merits
 The Respondent thereafter addressed the merits of the case as follows:
 With regards to ground 1 (supra), the Respondent argued that the court a quo found that there was insufficient evidence to confirm the existence of a valid contract between the parties. Respondent contended that in her judgment in paragraphs 14 and 15, the Magistrate stated the elements for a valid contract in law. That Under article 1101 of the Civil Code of Seychelles, a contract is an agreement whereby one or several persons bind themselves towards one or several others to give, do or refrain from doing something. He reiterated the four conditions essential for the validity of an agreement as stipulated in article 1108 as follows:
“(1) The consent of the party who binds himself; (2) His capacity to enter into a contract; (3) A definite object which forms the subject matter of the undertaking; (4) That it should not be against the law or against public policy.” Chetty v Chetty SCA 15/2009.
 The Respondent submitted further, that the Appellant’s assertions of the existence of a contract between them are without merit. Throughout the proceedings the Respondent denied agreeing with the Appellant, notably in proceedings dated 20th May 2021, “I don’t know with whom Mr Domingue…” As stated by the Learned Magistrate in paragraph 22 of her judgment, it was the Appellant/Plaintiff’s burden to prove the existence of a contract and that the Respondent consented to the same but the Appellant has failed to do so.
 Further, although it was never contested that the Respondent received the SCR25, 000 from the Appellant, it is the capacity in which it was done which has always been contested. The Respondent has always stated that he took the money upon his mother’s instructions as he was the only person at the residence on that day.
 That the agreement was made either with the person fixing the vehicle, one Deepal, or the owner of the garage, neither of which is the Respondent. As such the Respondent reiterates the ruling of the then Magistrate in paragraph 18, “the person seeking to prove that a contractual obligation was not fulfilled must prove that the term existed” which the Appellant has failed to do against the Respondent. Therefore it is the Respondent’s submission that this ground is without merit and fails.
 With regards to ground 2 (supra), the Respondent submitted that the then magistrate did not fail to consider the evidence of Joan Morel, the consideration has been included in paragraph 7 of her ruling. Further that the role of the Respondent was confirmed by the testimony of Joan Naddy Morel. At proceedings dated 29 April 2021, the witness confirms that “Mr Andre was not to personally repair the pickup…” This supports the Respondent’s submission that he was not a party to a contract with the Appellant and that he was a casual labourer at the garage.
 The Respondent further submitted that the Respondent’s evidence was further corroborated by the testimony of another witness, namely Nadine Andre, the proprietor of the garage where the works were carried out and subsequently desisted by the Appellant. In proceedings from the 20th May 2021 (page 7), Mrs. Nadine Andre testified that “…[The Appellant was to] do all arrangements with Deepal…they had to do arrangements in respect of price with Deepal…The arrangement was payment was to be paid with me because it was only for labour cost…” The Respondent accepted payment of a sum of SCR25, 000 by virtue of his presence at the garage as a casual labourer. This is accepted by the trial court in paragraph 19 of the judgment.
 It is further submitted that under Rule 65(3)(c) of the Magistrates’ Court (Civil Procedure) Rules, a Magistrate has discretion in interpreting documents to put before it is as appears necessary. However, a court may enter judgment solely based on the evidence put before it. The Appellant’s failure to adduce a receipt of payment for the sum of SCR25, 000 into evidence, as stated under paragraph 21 of the judgment, is their burden to bear.
 The Respondent alluded to paragraph 19 of the judgment where the trial court clearly states that “I have considered the evidence as adduced before the Court and the submissions made by Counsel…” As such, the Appellant’s submission accordingly is without merit and ought to be disregarded by the court.
 Responding to ground 3 (supra), the Respondent submits that an off-the-cuff offer, seemingly done without prejudice by previous counsel for the Respondent, presumably in an attempt to settle the matter, given the timing and right before the end of the case. That this was not commented upon by the Appellant nor was it an admission by the Respondent. That if anything the statement or offer only resulted in counsel for the Appellant being prompted to amend his pleadings. That at no time was this offer raised by the parties.
 The Respondent further cited the case of Michel v Talma (2012) SLR 95 where a consent judgment entered under section 131 of the Seychelles of Civil Procedure is a judgment of the court and matters therein contained may be relied upon in subsequent cases. Therefore, unless it is entered as a judgment by consent, it ought not to be relied upon in subsequent cases, and this ground is without merit.
Legal analysis and discussion of evidence
Point in limine
 The Appellant filed the Notice of Appeal timeously that is, within 14 days of the decision of the Magistrate as per Rule 6(2) of the Appeal Court Rules. Rule 11 thereof provides for the Memorandum of Appeal and states:
“If the appellant wishes to proceed with the appeal he shall, within fourteen days from the date of the service of the copy of the record referred to in the preceding rule, deliver to the clerk of the court a memorandum of appeal.”
 The Appellant, however, delivered such memorandum of appeal on the 11th of January 2022, some three and a half months outside the statutory period, and the said memorandum did not contain a prayer as per Rule 12 which governs the contents of the memorandum as follows:
“The memorandum shall contain a concise statement in numbered paragraphs of the point or points on which the judgment is alleged to be erroneous, without any argument or narrative, and a concise prayer for the relief claimed.” [Emphasis added]
 The question to be asked and answered at this juncture thus is whether the late filing of the memorandum and the failure to include the prayer in the memorandum is fatal to the appeal.
 The Appellant replied to the Respondent’s first preliminary objection by citing Rule 5 which grants an extension of time within which to file as follows:
“Extension of time
Any party desiring an extension of the time prescribed for taking any step may apply to the Supreme Court by motion and such extension as is reasonable in the circumstances may be granted on any ground which the Supreme Court considers sufficient.”
 The Appellant submitted that he obtained the necessary extension to file his memorandum of appeal. The chronology of events was that the record of appeal was served on the parties on the 16th of September 2021, and with same parties were informed to appear in court on the 3rd of November 2021. On the said date the Appellant’s attorney requested that they be served with a record of proceedings from the Magistrates’ court as they had not yet received same. The Court gave the Appellant’s counsel until 24th November to file the Memorandum of Appeal, stating “At least get the grounds on the file.” On the 24th November 2021, the Appellant had not filed the grounds as the Court had ordered, but Counsel for the Appellant informed the Court that they still had not received a record of the proceedings. The Court once again gave the Appellant until the 12th of January to file the grounds of appeal, which the Appellant eventually did on the 11th of January 2022. The memorandum did not however contain a concise prayer as per the dictates of Rule 11 as alluded to by the Respondent.
 With the Appellant having been given a precise direction by the Court both on the 3rd and 24th November 2021, to ensure that the grounds were on file, the least that Appellant could have done was that they are drafted properly, containing all those elements as stated in Rule 11. On the issue of the prayer not included in the memorandum as per Rule 11, the Appellant argued that Rule 14 applies to breach of Rules 11, 12, and 13 to the time aspect, and not the form of the memorandum. In light of this argument and the express provisions of Rule 14, the omission of the prayer, though mandatory, cannot be fatal given the narrow scope within which an appeal may be rendered withdrawn.
 Consequently, the Appellant ultimately complied with the Court’s direction to file the grounds of appeal by the 12th of January 2022, and there lies no penalty relating to the form of the memorandum, but as to the time prescribed. Having dealt with the preliminary objections, next is to deal with the merits of the case.
 Ground 1: Whether there was a legal contract between the Appellant and the Respondent.
 The undisputed facts in this matter are that the Appellant took his truck to the Respondent’s mother’s (hereafter “Mrs. Nadine Andre”) shop for repairs and bodywork. As referred to by the Appellant, the Respondent stated during the proceedings on the 20th May 2021 (page 1 of the record):
“The arrangement had been made with my mother as the owner of the garage…A few weeks later Steven came with the money. I called my mother to ask what to do. She told me to take the money and to issue Mr. Domingue with a receipt and I did that. It was R25,000/-.”
 He continues to deny any involvement in the arrangement by stating the following:
“My mother and Mrs Morel were good friends and made this arrangement. I had nothing to do with it. I don’t know what the SCR25,000/- was used for or what happened to the money.”
 The Respondent’s utterances were consistent with Mrs Nadine Andre’s testimony in so far as they both denied that the arrangement was between himself and the Respondent. As can be established from above, the Respondent first pointed to Mrs. Nadine Andre as the other party to the arrangement declaring “The arrangement had been made between my mother as the owner of the garage…” and “My mother and Mrs Morel were good friends and made this arrangement.” Later on, however, during cross-examination, the Respondent declared “No one had no arrangement with Mr. Domingue whatsoever.” Mrs. Andre’s evidence as well as absolute in exonerating the Respondent from liability. In reply to the question as to whether the agreement was made with her she declared “No there was no written agreement…the price was agreed with Deepal.” Therefore, the honourable Magistrate’s finding that both the Appellant and Mrs Nadine Andre’s testimonies were not contradictory in so far as they were emphatic that the Respondent was not a party to the agreement was correct. They only diverted on the identity of the party who contracted with the Appellant, the Respondent seemingly not too sure about whether it was his mother or Mr. Deepal, and Mrs. Andre's confidence that the arrangement was made with Mr. Deepal.
 The arrangement rightly was between the Appellant and Mrs. Andre, who instructed the Respondent to receive the money from the Appellant and to accordingly receipt the amount as proof of having received the same. Mr. Deepal, an employee of Mrs. Andre’s could not have been the contracting party as the money was paid to Mrs. Andre/her company, as Mr. Deepal’s employer, thus becoming vicariously liable for the acts of Mr. Deepal.
 Thus an action lies against Mrs. Andre, not the Respondent. Consequently, Magistrate Burian correctly dismissed the claim against the Respondent. The Court cannot attempt to find an equitable solution to do justice to the Appellant by adjudicating on issues, such as the unjust enrichment of Mrs. Andre, since this had not been raised by the Appellant (Elfrida Vel v Selwyin Knowles Civ Appeal Case No. 41 and 44 of 1988; Charlie v Francoise 1995 SCAR 49). Thus the facts before the honourable Magistrate Burian, and the legal provisions cited in his judgment, justified his finding that there was no contract between the Appellant and the Respondent. Legal provisions he cited included, among others: Article 118 which enumerates the provisions for a valid contract (affirmed in Chetty v Chetty SCA 15/2009); and, Article 1165 which states that contracts shall only have effect between the contracting parties, which was reaffirmed in Bossy (heirs) v Chow 2005 SLR 100;
 Ground 2: Whether the Magistrate erred in law and on the facts in failing to assess sufficiently or at all the evidence of the Appellant.
 The learned Magistrate Burian correctly stated that the Appellant failed to produce the receipt in support of his claim. Article 1341 of the Civil Code states as follows:
“Any matter the value of which exceeds 5000 Rupees shall require a document drawn up by a notary or under private signature, even for a voluntary deposit, and no oral evidence shall be admissible against and beyond such document nor in respect of what is alleged to have been said prior to or at or since the time when such document was drawn up, even if the matter relates to a sum of less than 5000 Rupees.”
 Similarly, Article 1343 provides that “A person who makes a claim which exceeds 5000 Rupees shall not be entitled to bring oral evidence, even if he reduces his original claim.” These provisions serve to inform on the obligation of the Appellant to prove his claim by means of documentary evidence, which the Appellant failed to provide. To that end, Article 1315 states “A person who demands the performance of an obligation shall be bound to prove it.” The Appellant has not been able to prove this obligation on the part of the Respondent to pay him the claimed amount.
 Ground 3: Whether the Respondent’s previous offer of settlement was an admission of guilt or evidence of the validity of the agreement between himself and the Appellant.
 In general terms, the without-prejudice rule operates to exclude genuinely without-prejudice communications from evidence in the current or subsequent proceedings between the parties to the dispute and between different parties to the dispute. In the case of Framlington v Barnetson  EWCA Civ 502), the court held that such communications:
- Could be oral and written communications;
- Must be a genuine attempt to compromise a dispute;
- There does not need to be litigation on foot or a threat of litigation; and,
- The label ‘Without Prejudice’ can be useful but it is not determinative.
 The court held that in such cases, the entirety of the communications is protected. Further, the House of Lords in the case of Bradford & Bingley v Rashid  4 All ER 705 concluded that the Without Prejudice Rule has no application to apparently open communications designed only to discuss the repayment of an admitted liability rather than to negotiate and compromise a disputed liability. In the present case, the Respondent has throughout the proceedings denied liability for the claimed amount. Based on the rationale that this was a genuine attempt to settle a disputed debt, the effort made towards settlement, which was rebuffed by the Appellant may not be used against him or interpreted as confirmation of his guilt.
Conclusion and findings
 It follows on the above analysis that the Judgment of Honourable Magistrate Burian was correct in reaching the conclusion which it did in that:
- It has been established that there was no arrangement/contract concluded between the Appellant and the Respondent. It follows therefore that no action lies against the Respondent as no legal right was violated by him ensuing from any agreement.
- The Magistrate was correct in stating that the Respondent and Mrs. Nadine Andre’s testimonies were consistent in so far as they denied that the Appellant had made an arrangement/contract with the Respondent.
- The offer of settlement extended to the Appellant was not an admission of liability by the Respondent but a genuine attempt to resolve the dispute between the parties.
 Given the foregoing, the appeal is dismissed with costs to the Respondent.
Signed, dated, and delivered at Ile du Port on the 21st day of February 2023
(Sitting as a Judge of the Supreme Court)
No Similar Judgment found.